Collins t/a Waterkloof Farm v Bernickow NO and Another (C1173/01) [2001] ZALC 223 (7 December 2001)

6

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD AT CAPE TOWN)

CASE NO: C1173/01

DATE: 7-12-2001

In the matter between:

VALERIE COLLINS t/a WATERKLOOF FARM Applicant

and

R BERNICKOW N O First Respondent

HENDRIK MENTOOR Second Respondents

J U D G M E N T

WAGLAY, J:

[1.] The second respondent in this matter was dismissed on 16 January 2001. After his dismissal he continued to occupy a portion of applicant's property without paying any rental. Some time after his dismissal, he (the second respondent) referred to the Commission for Conciliation, Mediation and Arbitration ("the CCMA") the issue about his dismissal for conciliation alleging that his dismissal was unfair.

[2.] According to the applicant (the employer) the referral for conciliation was made out of the prescribed time limits and second respondent was therefore required to apply for condonation. Whether or not condonation was properly applied for is in dispute. In any event, the CCMA, through the first respondent, the Commissioner, granted second respondent condonation for the late referral of his dispute with the applicant.

[3.] The applicant now seeks to review and set aside that decision of first respondent in terms of section 145(2) of the Labour Relations Act. This application is lodged on an urgent basis in terms of Rule 8 of the Rules of this Court and is set down for hearing today, six days after being filed in court. [4.] Rule 8 provides for the bringing of urgent applications. In determining an urgent application the Court may dispense with the forms and services required by it. The extent to which non-compliance with rules is excused depends on the degree of urgency. Urgency does not only pertain to some threat to life and liberty, but also to commercial interests. The idea behind allowing matters to be heard on an urgent basis is to prevent the occasioning of an injustice. The Court must balance the potential injustice which may result from the observance of normal rules with "the right of parties to have considered opportunity to place their case before this Court.” [5.] The applicant should set out the reasons for the urgency, meaning the circumstances which render the matter urgent, and the reason why the applicant claims it could not be afforded substantial redress at the hearing in due course. The grounds which need to be satisfied before this Court will come to the assistance of an applicant in an urgent application is: i. There must be a well-founded/ reasonable apprehension of harm should the Court not grant leave. ii. Absence of any other adequate remedy. iii. Balance of convenience favouring the applicant in the circumstances.

[3.] The applicant now seeks to review and set aside that decision of first respondent in terms of section 145(2) of the Labour Relations Act. This application is lodged on an urgent basis in terms of Rule 8 of the Rules of this Court and is set down for hearing today, six days after being filed in court.

[4.] Rule 8 provides for the bringing of urgent applications. In determining an urgent application the Court may dispense with the forms and services required by it. The extent to which non-compliance with rules is excused depends on the degree of urgency. Urgency does not only pertain to some threat to life and liberty, but also to commercial interests. The idea behind allowing matters to be heard on an urgent basis is to prevent the occasioning of an injustice. The Court must balance the potential injustice which may result from the observance of normal rules with "the right of parties to have considered opportunity to place their case before this Court.”

[5.] The applicant should set out the reasons for the urgency, meaning the circumstances which render the matter urgent, and the reason why the applicant claims it could not be afforded substantial redress at the hearing in due course. The grounds which need to be satisfied before this Court will come to the assistance of an applicant in an urgent application is:

i. There must be a well-founded/ reasonable apprehension of harm should the Court not grant leave.

ii. Absence of any other adequate remedy.

iii. Balance of convenience favouring the applicant in the circumstances.

[6]. In Polyoak v C W I U(1999)20ILJ 392(LC) the Court held that it would excuse shortcomings in the procedure and apparent merits of an urgent application for interim relief but will demand a higher form of compliance with the usual standard on the return date. In National Police Service Union v The National Negotiating Forum(1999) 20 ILJ 1081 (LC) where a trade union sought an interim interdict preventing the National Negotiating Forum from applying a minimum threshold of 10 000 members in order to be an employee organisation party to the National Negotiating Forum, the Court held that the correct approach in determining whether to grant relief or not was to balance the opportunity of the parties to state their case with the potential injustice that would be caused by strict adherence to the usual time limits. The Court held that : "the latitude extended to parties to dispense with the Rules of this Court in circumstances of urgency is an integral part of the balance that the rules attempt to strike between time limits, that afford parties a considered opportunity to place their respective cases before the Court and the recognition that in some instances, the application of the prescribed time limits, or any time limits at all, might occasion injustice” (at 1092 B-E). [7]. Also in CWIU v Sasol Fibres(1999) 20 ILJ 1222 (LC) in dealing with an application for an urgent interdict preventing unilateral changes to employees' terms and conditions of employment, the Court held at 1227 B-C: "As far as the issue of irreparable harm is concerned, the applicants state that they will suffer substantial reduction of income. I accept that that is correct but the Court is not told what effect that situation will have on the union's members.

It is simply not acceptable for parties to make bald allegations and leave it to the Court to fathom consequences of the conduct complained of. “

[6]. In Polyoak v C W I U(1999)20ILJ 392(LC) the Court held that it would excuse shortcomings in the procedure and apparent merits of an urgent application for interim relief but will demand a higher form of compliance with the usual standard on the return date. In National Police Service Union v The National Negotiating Forum(1999) 20 ILJ 1081 (LC) where a trade union sought an interim interdict preventing the National Negotiating Forum from applying a minimum threshold of 10 000 members in order to be an employee organisation party to the National Negotiating Forum, the Court held that the correct approach in determining whether to grant relief or not was to balance the opportunity of the parties to state their case with the potential injustice that would be caused by strict adherence to the usual time limits. The Court held that : "the latitude extended to parties to dispense with the Rules of this Court in circumstances of urgency is an integral part of the balance that the rules attempt to strike between time limits, that afford parties a considered opportunity to place their respective cases before the Court and the recognition that in some instances, the application of the prescribed time limits, or any time limits at all, might occasion injustice” (at 1092 B-E).

[7]. Also in CWIU v Sasol Fibres(1999) 20 ILJ 1222 (LC) in dealing with an application for an urgent interdict preventing unilateral changes to employees' terms and conditions of employment, the Court held at 1227 B-C:

"As far as the issue of irreparable harm is concerned, the applicants state that they will suffer substantial reduction of

income. I accept that that is correct but the Court is not told what effect that situation will have on the union's members.

It is simply not acceptable for parties to make bald allegations and leave it to the Court to fathom consequences of the conduct complained of. “

[8.] Furthermore, if the applicant seeks this Court to come to its assistance it must come to the Court at the very first opportunity it cannot stand back and do nothing and some days later seek the Court's assistance as a matter of urgency. [9]. It is clear from the above that the Courts do not easily grant urgent relief. This caution is justified given the exceptional and drastic nature of such relief. The Labour Court Rules set out the proper procedure through which applications to the Court should be pursued and these rules exist to ensure that due process is allowed to run its course. They have not been arrived at arbitrarily but after careful consideration as developed over years of practice. Thus, deviation from the usual rules should not be taken lightly, it is only in exceptional circumstances that the Court will deal with applications on an urgent basis. In order to succeed in an urgent application, the applicant must satisfy the Court that on balance the interests of justice outweighs the right of the parties to have a considered opportunity to place their case before this Court. Although the Courts recognise that financial consideration may be taken into account, the onus is on the applicant to show the prejudicial effect that will give rise to the injustice and plus the urgency of the situation. In particular, the applicant must show that he has launched the application at the first available opportunity; that special circumstances exist justifying the granting of the order; and there is no alternative remedy available to it.

[8.] Furthermore, if the applicant seeks this Court to come to its assistance it must come to the Court at the very first opportunity it cannot stand back and do nothing and some days later seek the Court's assistance as a matter of urgency.

[9]. It is clear from the above that the Courts do not easily grant urgent relief. This caution is justified given the exceptional and drastic nature of such relief. The Labour Court Rules set out the proper procedure through which applications to the Court should be pursued and these rules exist to ensure that due process is allowed to run its course. They have not been arrived at arbitrarily but after careful consideration as developed over years of practice. Thus, deviation from the usual rules should not be taken lightly, it is only in exceptional circumstances that the Court will deal with applications on an urgent basis. In order to succeed in an urgent application, the applicant must satisfy the Court that on balance the interests of justice outweighs the right of the parties to have a considered opportunity to place their case before this Court. Although the Courts recognise that financial consideration may be taken into account, the onus is on the applicant to show the prejudicial effect that will give rise to the injustice and plus the urgency of the situation. In particular, the applicant must show that he has launched the application at the first available opportunity; that special circumstances exist justifying the granting of the order; and there is no alternative remedy available to it.

[10.] In this matter, the applicant became aware of the granting of condonation by the first respondent at the very latest on 31 October 2001. This application was launched a month later. It is not clear what reasons for the delay in bringing the urgent application exist. Further, the applicant ascertained that the CCMA will be in a position to hear the arbitration in February next year or, as it says, not before the end of January. This rather curious allegation seen in the light of applicant's challenge to first respondent's granting of condonation negates the seriousness of the review itself. Furthermore, it is for the applicant to show why proceedings at the CCMA do not constitute an adequate alternative remedy. [11.] Whatever the merits of the review of the CCMA decision may be, the onus is on the applicant to show the urgency of the situation.

The caution with which this Court treats applications for urgent relief has been set out above. Here the applicant seeks a final order reviewing a decision of the CCMA. Such an order calls for even more caution than that afforded applications for relief of an interim nature. It is a situation where the parties should have time to prepare thoroughly and be allowed an opportunity to state their respective cases. Nevertheless, this imperative to due process may be outweighed where the applicant has shown that injustice will clearly result from a failure to review CCMA decisions and this injustice outweighs the consideration of due process. For this we must look at the reasons advanced by the applicant. [12.] Applicant, in effect sets out four reasons why this matter should be entertained as a matter of urgency. The four reasons he sets out in his papers are the following:

[10.] In this matter, the applicant became aware of the granting of condonation by the first respondent at the very latest on 31 October 2001. This application was launched a month later. It is not clear what reasons for the delay in bringing the urgent application exist. Further, the applicant ascertained that the CCMA will be in a position to hear the arbitration in February next year or, as it says, not before the end of January. This rather curious allegation seen in the light of applicant's challenge to first respondent's granting of condonation negates the seriousness of the review itself. Furthermore, it is for the applicant to show why proceedings at the CCMA do not constitute an adequate alternative remedy.

[11.] Whatever the merits of the review of the CCMA decision may be, the onus is on the applicant to show the urgency of the situation.

The caution with which this Court treats applications for urgent relief has been set out above. Here the applicant seeks a final order reviewing a decision of the CCMA. Such an order calls for even more caution than that afforded applications for relief of an interim nature. It is a situation where the parties should have time to prepare thoroughly and be allowed an opportunity to state their respective cases. Nevertheless, this imperative to due process may be outweighed where the applicant has shown that injustice will clearly result from a failure to review CCMA decisions and this injustice outweighs the consideration of due process. For this we must look at the reasons advanced by the applicant.

[12.] Applicant, in effect sets out four reasons why this matter should be entertained as a matter of urgency. The four reasons he sets out in his papers are the following:

i. That this is the busiest and most labour-intensive season for the wine industry in which applicant is involved, the season being from December to March. As there is usually a shortage of workers in this period it is the most suitable period for the second respondent to find alternative employment and accommodation. ii. That the second respondent is currently employed. iii. That if the decision of the CCMA is not set aside as a matter of urgency the applicant will not be able to proceed with an application to have second respondent evicted. An application has been pursued in this regard in terms of the Extension of Securities of Tenure Act 66 of 1997 but was postponed sine die in the light of the pending proceedings in the CCMA. That the CCMA is unlikely to schedule an arbitration before the end of January 2002, plus the applicant will not receive substantial redress at hearing in due course. [13.] Although we can be less than certain that the second respondent is grateful for the applicant's consideration in respect of finding alternative accommodation and employment, the reasons listed as "i" and "ii" above do not divulge to this Court why injustice to the applicant outweighs due process in this instance, making this matter urgent. With regard to the fourth reason given, the applicant has not explained why an arbitration hearing held in February next year does not constitute adequate alternative remedy.

i. That this is the busiest and most labour-intensive season for the wine industry in which applicant is involved, the season being from December to March. As there is usually a shortage of workers in this period it is the most suitable period for the second respondent to find alternative employment and accommodation.

ii. That the second respondent is currently employed.

iii. That if the decision of the CCMA is not set aside as a matter of urgency the applicant will not be able to proceed with an application to have second respondent evicted. An application has been pursued in this regard in terms of the Extension of Securities of Tenure Act 66 of 1997 but was postponed sine die in the light of the pending proceedings in the CCMA.

That the CCMA is unlikely to schedule an arbitration before the end of January 2002, plus the applicant will not receive substantial redress at hearing in due course.

[13.] Although we can be less than certain that the second respondent is grateful for the applicant's consideration in respect of finding alternative accommodation and employment, the reasons listed as "i" and "ii" above do not divulge to this Court why injustice to the applicant outweighs due process in this instance, making this matter urgent. With regard to the fourth reason given, the applicant has not explained why an arbitration hearing held in February next year does not constitute adequate alternative remedy.

[14.] This then leaves the only real reason being the third one which is asserted by the applicant. CCMA proceedings are currently holding up applicant's pressing eviction of the second respondent. While it has been held that pending eviction from accommodation can be a ground for urgent interim relief to the person threatened with eviction, applicant is here asserting the property-owner's right to circumvent due process in order to speed up an eviction. In so doing, however, the applicant does not set out the nature and extent of the injustice that he is suffering while the CCMA order of condonation remains in operation. Had this been done, this Court would have given consideration thereto. [15.] For the reasons above the applicant has failed to establish why the application is urgent, let alone show why the urgency of the application justifies a departure from the ordinary rules, and a failure to explain why it only saw fit to launch this application a month after being aware of the decision it seeks to review. [16.] In the result the Court is not prepared to entertain this application by reason of Applicant’s failure to satisfy this Court that this matter is urgent. Consequently the application is dismissed. WAGLAY, J FOR THE APPLICANT: ATTORNEY LEON LOCHNER OF PLOUGMANN INC DATE OF HEARING AND JUDGMENT: 7 DECEMBER 2001 (EDITED)

[14.] This then leaves the only real reason being the third one which is asserted by the applicant. CCMA proceedings are currently holding up applicant's pressing eviction of the second respondent. While it has been held that pending eviction from accommodation can be a ground for urgent interim relief to the person threatened with eviction, applicant is here asserting the property-owner's right to circumvent due process in order to speed up an eviction. In so doing, however, the applicant does not set out the nature and extent of the injustice that he is suffering while the CCMA order of condonation remains in operation. Had this been done, this Court would have given consideration thereto.

[15.] For the reasons above the applicant has failed to establish why the application is urgent, let alone show why the urgency of the application justifies a departure from the ordinary rules, and a failure to explain why it only saw fit to launch this application a month after being aware of the decision it seeks to review.

[16.] In the result the Court is not prepared to entertain this application by reason of Applicant’s failure to satisfy this Court that this matter is urgent. Consequently the application is dismissed.

WAGLAY, J

FOR THE APPLICANT: ATTORNEY LEON LOCHNER OF PLOUGMANN INC

DATE OF HEARING AND JUDGMENT: 7 DECEMBER 2001 (EDITED)